The Federal Court reviewed Faisal
Alkarrami and his family’s H&C refusal. The officer acknowledged
significant hardship if the family returned to Libya, particularly for their
son with Autism Spectrum Disorder, but gave it little weight because an administrative
deferral of removals was in place and other immigration pathways might later
become available.
Key Principle
An H&C application must be
assessed on present circumstances, not on speculative future possibilities. An
ADR cannot be used to minimize otherwise significant hardship, and hypothetical
future PR pathways cannot justify refusing equitable relief where each pathway
depends on multiple contingencies that may never occur.
Background
The Libyan family came to Canada
in 2013 while Mr. Alkarrami pursued a PhD. Their son was diagnosed with Autism
Spectrum Disorder and received specialized educational and health supports. The
H&C application relied on establishment, the children’s best interests,
particularly the son’s needs, and adverse conditions in Libya. The officer
accepted significant hardship but refused relief.
Court Findings
• ADR Could Not Justify Giving
Hardship Little Weight
The officer accepted that return
to Libya would create significant hardship, especially for the son, but reduced
the weight of that hardship because removal was unlikely while the ADR remained
in place. The Court held this reasoning inconsistent with Bawazir, Omar, and
Al-Abayechi, which reject using a protection measure to diminish H&C
relief.
• H&C Must Be Assessed on
Present Circumstances
The Court emphasized that H&C
relief must be considered according to circumstances as they currently exist.
The officer instead relied on possible future developments that could permit
the family to obtain PR without returning to Libya, shifting the analysis away
from their actual situation.
• Future PR Pathway Was Too
Speculative
The proposed Federal Skilled
Worker pathway depended on Mr. Alkarrami completing his PhD, obtaining a
post-graduation work permit, securing qualifying employment for at least 12
months, and successfully applying for PR. Because each step was contingent, the
officer could not treat that route as a concrete alternative to H&C relief.
• Son’s Hardship Was Personal,
Not Merely General
The officer characterized the
dangers and difficulties in Libya as general hardships arising from conflict
and institutional instability. Yet the officer had already recognized that the
son’s autism-related educational and health needs made his hardship significant
and possibly lifelong. The Court held that, at least for him, the hardship was
clearly individualized.
• Alzoubei Was Distinguishable
The Minister relied on Alzoubei,
where an officer gave Libyan country conditions great weight and considered the
applicants’ temporary status. The Court distinguished that case because here
the officer gave the same country conditions little weight and relied on an
uncertain future immigration route rather than an existing alternative.
• Officer Failed to Address
the Stated Contingency
The officer said they would
consider what would happen if the applicant could not secure a regular path to
PR before becoming removable. However, the reasons never actually addressed
that possibility. The omission rendered the analysis incomplete and unreasonable.
Outcome
The Federal Court granted
judicial review and remitted the H&C application to a different immigration
officer for redetermination. No question was certified.
Case
Citation:
Alkarrami v. Canada (Citizenship and Immigration), 2022 FC 1165 (CanLII)
Prepared by:
Dr. Muhammad Abrar (Barrister and Solicitor)
Author | Writer | Mentor | Legal Researcher | Canadian Immigration Case Law and Statistics Analyst
